Volume 91 — Texas Reports

<p>1. Contract—Construction.</p> <p>A sub-contractor agreed, with contractors for construction of mason work on bridge piers for a railway, for the performance of certain rock work according to the specifications of the latter’s contract with the railway company and to the acceptance and satisfaction of its chief engineer. By that contract courses were to be not less than twelve nor more than thirty inches in thickness, decreasing from bottom to top of walls, the kind and quality of materials subject to the approval of the company’s engineer, and the work to be done in accordance with his directions. This was an agreement between the contractors and sub-contractor that the engineer should determine the kind and quality of the stone to be used in the work and the thickness of the courses. (P. 4.)</p> <p>2. Same—Antecedent Verbal Agreement.</p> <p>The effect of such contract could not be avoided by proof of an antecedent verbal agreement between the engineer, the contractors, and the sub-contractor, that the piers might be built of stone from a certain quarry and the courses be of the same thickness as those of a certain existing bridge. (P. 5.)</p> <p>3. Same—Charge.</p> <p>It was error in such case to instruct that the original contract did not provide when the engineer should inspect and approve the material or determine the thickness of the courses, and that his designation, in anticipation of the sub-contract, at the request of the contracting parties, of a certain kind of stone and thickness of range as satisfactory gave the parties a right to contract with reference to such designation, and bound them by it, though nothing was said in their written contract with reference thereto. (Pp. 3 to 6.)</p> <p>4. Same—Estoppel.</p> <p>The parties are conclusively presumed to have abandoned the verbal contract at the time they entered into the written one. The rule prohibiting contradicting a subsequent written contract by a verbal agreement cannot be evaded by allowing' such verbal agreement to be set up as an estoppel, (p. g.)</p> <p>5. Same—Cases Discussed.</p> <p>Jones & Carey v. Gilchrist, 88 Texas, 88, followed, and Ricker, Lee & Co. v. Collins, 81 Texas, 663, distinguished.</p> <p>6. Contract—Consideration.</p> <p>On the refusal of the sub-contractor to proceed with the work except with the material and in the manner sanctioned by the engineer in the verbal agreement preceding the written contract, the agreement of the contractors to pay him extra compensation if he would proceed according to the engineer’s directions, as by the written contract he was bound to do, was without consideration, and his completion of the work under such arrangement did not entitle the sub-contractor to such extra compensation, (p. 7.)</p>

<p>Questions certified from Court of Civil Appeals for Fifth District, in an appeal from Navarro County.</p>

The original opinion in this case is published in 90 Texas, page 398. The opinion on motion for rehearing was not with the record as it then reached the Reporter, who was not advised that a written opinion had been delivered thereon.

Wallace, by next friend, sued the cotton oil company for personal injuries received while in its employ and charged to have been caused by defendant’s negligence in failing to explain to plaintiff, a minor, the dangers of the work and failing to light the press room where he was injured.

<p>Question certified from the Court of Civil Appeals, Fourth District, in an appeal from Navarro County.</p> <p>The suit was brought by the Tyson-Jones Buggy Company against R. J. Allen et al. to recover for conversion • of plaintiff’s property. From a judgment in favor of plaintiff, the defendants appealed. The judgment was affirmed by the Court of Civil Appeals, but, pending a motion for rehearing by appellants, the question shown in the opinion was certified to the Supreme Court.</p>

<p>1. Probate Sale—Description of Property—Collateral Attack.</p> <p>An intestate had owned the entire eleven-league survey granted to G. and had sold various tracts out of it. The inventory of his estate described among its lands, “a claim to about six or seven leagues of land, more or less, situated partly in W. and partly in M. County, Texas, being a part of an eleven-league tract of.land originally granted to G., the said claim consisting of detached and separate parcels of land within the tract.” An application to sell “all the lands belonging to the estate” for the payment of large debts contained the same description, adding, “Whose several contents are unknown.” Order was granted to sell all the right, title and interest of J. C., deceased, to about six or seven leagues of land, more or less, situated partly in W. and partly in M. County, Texas, being part of an eleven-league tract of land originally granted to G. As the said land consists of detached and separate parcels, of various sizes and located in different places, within the said tract, whose several contents are unknown, the administrator shall sell the whole right, title and interest to the same at once.” Other large tracts embraced in the order were directed to be divided and sold in separate parcels. The report of sale followed the description contained in the order, and the deed that in the application, adding, “It being intended and understood that the whole and entire interest of said J. C., deceased, in said eleven-league tract is hereby conveyed. Held:</p> <p>(1) The proceedings evinced a determination to sell all the lands of the estate, including all its interest in the eleven league survey in the name of G.</p> <p>(2) The words “six or seven leagues, more or less,” are to be taken as a description of the quantity therein, and did not refer to separate surveys.</p> <p>(3) The language in the order, “as the land consists of separate and detached parcels,” etc., expressed the reason for selling in one body the entire interest of the estate in the eleven-league grant, and did not constitute a part of the description of the land.</p> <p>(4) If considered a part of the description it could be rejected as false.</p> <p>(5) The certainty of description required in a conveyance is that, by the use of extraneous evidence, it may be applied to the property so as to identify it.</p> <p>(0) Rejecting from the order the language last quoted, there still remained sufficient to identify the land.</p> <p>(7) The proceedings conveyed to the purchaser the entire interest of the estate in the eleven-league grant, as against a collateral attack.</p> <p>3. Supreme Court—Reversal—Rendering Judgment.</p> <p>See, opinion for case in which, on reversing the judgment of the Courtof Civil Appeals, it was held proper for the Supreme Court to render final judgment.</p>

Eeros to the Court of Civil Appeals for the Second District, in writ of error from Haskell County. Plaintiffs below recovered judgment in trespass to try title against defendants who in turn recovered against Weems and Waldo, their warrantors. The latter procured writ of error seeking to revise both the judgment of plaintiffs for the land and that of defendants on the warranty.

<p>Question certified from Court of Civil Appeals for Fourth District, in an appeal from Orange County.</p>

The suit was brought by Ida H. Brackett to recover on the note given by Luzenberg et al. and foreclose the lien of the purchase money note of Brown assigned to her as collateral, and the building association, and-James, its trustee, were also made defendants. A judgment holding their lien inferior to that of plaintiff was affirmed on appeal and the building association obtained writ of error.

The suit was brought by the plaintiff in error upon a debt, with attachment. Plaintiff recovered the amount of its claim and defendant was allowed damages in reconvention. Plaintiff appealed, and upon affirmance procured writ of error.

<p>1. Railway Crossing—Obstructed View—Charge.</p> <p>See charge held erroneous in making the failure of a railway company to prevent the obstruction of the view at a crossing negligence. (P. 55.)</p> <p>2. Same—Negligence—Contributory Negligence.</p> <p>The obstruction to the view had a material bearing on the contributory negligence of plaintiff, and might be considered as well to show want of care on his part as to excuse his failure to see. The existence of such obstructions, with other circumstances, were likewise proper to be considered upon the question of the degree of care which defendant was bound to exercise in the running and management of its trains and giving warning of its approach. (Pp. 56, 57.)</p> <p>3. Same.</p> <p>The existence of such obstructions could not, however, be an independent ground for recovery. (Cordell v. Railway, 70 N. Y., 119.) (Pp. 56, 57.)</p> <p>4. Contributory Negligence—Crossing—Stop, Look or Listen—Charge.</p> <p>See charge, applying the general requirement of ordinary care on the part of one approaching a railway crossing to the question of his duty to stop, look or listen, held properly refused, because leaving to the jury only by inference the question whether such failure was negligence, or was a cause of the injury; but which, if properly framed, should have been given, as a specific application of the general principle given in the charge to the facts of the case. (Railway v. McGlamory, 69 Texas, 635, reaffirmed on this point.) (Pp. 57, 58.)</p> <p>5. Same—Driver—Imputed Negligence.</p> <p>Plaintiff’s right of recovery could not be defeated by the negligence of the person in whose wagon he was riding. (P. 58.)</p> <p>6. Placing in Peril—Acts Under Terror.</p> <p>One who, by his negligence, has placed another in a position of peril is responsible for an injury resulting from the effort of the latter to save his life, whether the means chosen are prudent or imprudent. (Railway v. Neff, 87 Texas, 309.) (P. 59.)</p> <p>7. Charge—Contributory Negligence.</p> <p>See, instruction held not to be taken, when construed in connection with the remainder of the charge, as holding defendant liable irrespective of his negligence, if plaintiff was not, himself, negligent. (P. 59.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.</p>

<p>1. Unrecorded Deed—Innocent Purchaser.</p> <p>Warranties in a deed may be looked to in order to determine whether or not the grantee be an innocent purchaser, but are not conclusive. (P. 70.)</p> <p>2. Same—Q,uit Claim.</p> <p>A deed conveying the grantor’s interest in the property mentioned therein, but describing same as an undivided half interest, is a conveyance of such half interest and not a mere quit claim, and a grantee may be an innocent purchaser under such deed. (Pp. 70, 71.)</p> <p>3. Same—Administrator’s Sale.</p> <p>One may be an innocent purchaser at an administrator’s sale and may even stand upon a better footing than a purchaser from an heir. (P. 71.)</p> <p>4. Same.</p> <p>Whether a purchaser at an administrator’s sale without notice of an unrecorded deed can be protected, does not depend upon the form of the deed, but if it appears from the whole transaction that it was the purpose to sell and the intention of the purchaser to buy the land itself, and not a mere chance of title, he may be an innocent purchaser. (P. 71.)</p> <p>5. Same.</p> <p>The fact that a purchaser at administrator’s sale paid for the land by crediting the price on her claim against the estate may preclude her, but not the purchaser from her for value, from claiming as a bona fide purchaser. (P. 73.)</p> <p>6. Same—Fact Case.</p> <p>The apparent legal title to an undivided one-half interest in certain lands was in the estate of a decedent—a conveyance thereof by a previous owner being unrecorded —and it was so inventoried. An order authorized the sale of “all the title and interest of the estate in and to” such half interest, and sale was reported of “all the right, title and interest of this estate in and to” the lands in question, and an order of court confirmed the sale of “an undivided half of” such lands, in pursuance of which the administrator conveyed “all the right, title and interest” of said estate in and to the lands so described. The purchaser conveyed to another without notice of the unrecorded deed “all my interest in the following described land, being an undivided one-half interest in and to” the land with description thereof. Held, that the proceedings evidenced an intention to sell an undivided half interest, and not a mere chance of the title thereto, as the property of the estate, and that the last purchaser was protected against the unrecorded deed. (Pp. 70 to 73.)</p> <p>7. Improvement—Recovery of Half Interest.</p> <p>Intervenors who recovered an undivided half interest in the land in controversy were, in the absence of equities entitling defendants to more, chargeable with only one half the value of the improvements. (P. 73.)</p>

<p>1. Limitation—Death, of Party Entitled to Sue.</p> <p>Action to set aside a deed of trust and conveyance by the trustee thereunder on the ground of fraud and collusion between the trustee and the purchaser accrued at the time of making the deed and was subject to the statute of limitation of four years (Rev. Stats., art. 3358), but the statute was suspended for one year on the death of the party entitled to sue, where there was no administration upon his estate (Rev. Stats., art. 3369), and suit brought by his heirs more than four and less than five years after the conveyance by the trustee was not barred. (P. 76.)</p> <p>3. Same.</p> <p>The statute (Rev. Stats., art 3369) makes no exception of cases where no administration is necessary and the courts have no authority to do so. (P. 76.)</p> <p>3. Res Adjudicata—Issues Excluded.</p> <p>A judgment is not res adjudicata as to issues expressly excluded from the determination by the ruling of the court. (Converse v. Davis, 90 Texas, 463; Pishaway v. Runnells, 71 Texas, 352; Teal v. Terrell, 48 Texas, 508.) (Pp. 77, 78.)</p>

This litigation involved the rights of various creditors in the property known as “Holmes’ Castle,” in Fort Worth, and is connected with the sensational career of one Herman W. Mudgett, alias H. H. Holmes, who was executed in Philadelphia, in 1896, for the murder of B. F. Pitzel. His case is reported as Commonwealth v. Mudgett, 174 Pa. St., 211; s. c., 34 Atl. Rep., 588.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Wichita County.</p>

<p>Application for writ of error to the Court of Civil Appeals for the Third District, in appeal from Marion County.</p> <p>The. proceeding was by garnishment brought by Bailey against Deware, trustee for Bower. Plaintiff had judgment and the trustee appealed. The judgment was reversed by the Court of Civil Appeals and appellee applied for a writ of error on the ground that the decision virtually overruled previous cases.</p>

<p>Foreign Corporation—Must Plead and Prove Permit.</p> <p>A corporation of another State (a building and loan association) doing business through a branch office in Texas, must allege and prove that it had obtained a permit to do business here, as required by the statute, in order to maintain suit upon a demand accruing in Texas. (P. 94.)</p>

<p>Error to the Court of Civil Appeals for the Fifth District, in an appeal from Cass County.</p>

<p>Liens—Purchase by Junior Incumbrancer—Off-set—Rescission.</p> <p>Owners of land incumbered by a deed of trust conveyed it to defendant, taking each separate notes from him for the amount of their several interests (those given to plaintiff being the ones sued on in this action). Afterwards, by agreement among themselves, they had the land sold under the prior deed of trust to a purchaser who conveyed it to a corporation organized for that purpose, in which they each received stock proportional to the amount each held in defendant’s notes given for the land on its sale to him. Held,</p> <p>(1) Defendant had no right to or interest in the stock of the new company which would give him a right to set off against plaintiff’s notes the value of the stock received by him. (Pp. 107, 108.)</p> <p>(2) The case did not fall within the rule of Boothe v. Fiest (80 Texas, 141), as to the defendant’s right to off-set against the notes the value of his interest in the land; but if that right were admitted it would not justify an instruction for defendant where the value of such interest was not proven. (P. 108.)</p> <p>(3) If the sale to defendant was an executed contract? as appeared from the record, no express lien being reserved, plaintiff could not rescind the contract by taking possession of the land. (P. 108.)</p>

<p>1. Pleading—Denial.</p> <p>The common law rule that a material allegation in a pleading which is not traversed, is admitted, is in force in this State, except in so far as the statute provides that a special matter pleaded as a defense is regarded as denied by plaintiff unless' expressly admitted. (P. 113.)</p> <p>2. Pleadings as Evidence.</p> <p>Where a general denial is interposed it is not proper to admit in evidence special pleas of defendant to prove facts therein alleged; but facts admitted in the pleadings and not denied by the party in other pleas are established against him. It is not necessary or proper to read such pleadings in evidence, their construction and effect being for the court. (Pp. Ill, 113.)</p> <p>3. Same.</p> <p>An answer of defendant in trespass to try title containing no plea of not guilty, but pleading specially the execution of a deed, for certain trust purposes, was an admission of its execution; but the burden of proving the allegation as to the purpose for which it was executed was on defendant, that fact being by the statute taken as. denied by plaintiff (Rev. Stats., art. 1193.) (Pp. 110, 111, 118.)</p> <p>4. Evidence—Conveyance—Mutilated Deed.</p> <p>See opinion for mutilated copy of deed from partially burned records. Held, evidence to establish a conveyance, but not, in itself, conclusive. (Pp. 110,118,113.)</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Dallas County.</p> <p>The suit was brought by Nash, as County Judge, for the use of the county, against Coe, County Treasurer, and his sureties. Plaintiff recovered and defendants appealed, and on affirmance of the judgment by ■the Court óf Civil Appeals obtained writ of error.</p>

<p>1. Chattel Mortgage—Description—Election by Mortgagee.</p> <p>The description of property in a mortgage is sufficient if it identify the articles by conferring an express or implied power to select them from a larger number of similar description. (P. 127.)</p> <p>2. Same.</p> <p>A chattel mortgage of fifty mares in a named brand, the mortgagor having three hundred in that brand, confers an implied right upon the mortgagee to select the mortgaged property from the larger number. (P. 127, 128.)</p> <p>3. Same—Foreclosure.</p> <p>It would be better to require the selection to be made before or at the time of the foreclosure, but the mortgagor or a purchaser with notice could not complain of a decree foreclosing upon fifty average animals out of the three hundred. (P. 128.)</p>

<p>1. Injunction—Trustee.</p> <p>A trustee in possession of a stock of goods conveyed to him by a firm for sale to pay creditors can, by injunction, compel the restoration of goods out of such stock unlawfully levied upon (by seizure upon execution against one of the partners, instead of by notice as provided by Rev. Stats., arts. 2349, 2352), by showing that such taking greatly depreciated in value the remainder of the stock and damaged the trust estate. (Pp. 139, 131.)</p> <p>2. Same—Remedy at Law—Inadequate.</p> <p>Such injunction could not be denied on the ground that the trustee had a remedy at law, by trial of right of property under the statute—such remedy being, for reasons given, inadequate; nor would the trustee have, in an action for damages against the sheriff, a remedy adequate, i. e., as practical and efficient as the remedy in equity, for the damage by depreciation of the remainder of the stock. (Pp. 131,132.)</p> <p>3. Same—Courts of Law and Equity.</p> <p>The rules denying an injunction where there is an adequate remedy at law should not be applied in courts administering both law and equity as rigidly as where the jurisdiction is distinct. (P.132.)</p> <p>4. Same—Statute Construed.</p> <p>The court incline to hold such injunction maintainable under Rev. Stats., art. 2989, though the remedies at law should be held adequate. (P. 132.)</p>

<p>Questions certified from Court of Civil Appeals for First District, in an appeal from Harris County.</p>

Mary J. Durst et al. brought suit in the District Court of Cameron County, against J. S. McCampbell, to remove cloud from title and cancel deeds. Plaintiffs recovered judgment, which was reversed by the Supreme Court on defendants’ appeal. McCampbell v. Durst, 73 Texas, 410. The venue being changed to Nueces County, plaintiffs again had judgment, and upon defendant’s appeal it was again reversed by the Court of Civil Appeals. 40 S. W. Rep., 315.

<p>Partition—Sale—Jurisdiction—Parties—Collateral Attack.</p> <p>C. and her two children, G. and F., the latter a minor, sole owners oí certain lands, united in 1869 in a petition to the District Court, alleging that a partition was advisible and could only be justly attained by a public sale oí the property, and praying for an order for sale of the lands by the sheriff, with permission for each to purchase to the extent of his interest without payment of money, and for “different and general relief.” In a suit to recover lands sold under such order from those claiming under the purchases at said sale—Held:</p> <p>(1) The proceeding was not “merely an application for the appointment of an agent to sell certain real estate,” but essentially a suit for partition, and within the jurisdiction of the District Court. (Pp. 160, 162.)</p> <p>(2) This conclusion was not affected by the fact that all the parties were joined as plaintiffs instead of some being made defendants, as is usual. On such an issue each is necessarily antagonistic to the other throughout the entire proceeding, whether they put in motion the machinery of the law as co-plaintiffs or otherwise. (P. 161.)</p> <p>(3) The allegation that a just partition could not be effected without a sale, with special prayer therefor, was not binding on the court, which might have disregarded same and proceeded to partition in kind, if such course had been deemed to the best interest of all concerned. (P. 161.)</p> <p>(4) Since a minor was interested, it was the duty of the court to inquire into and determine the truth of the allegation before entering any decree thereon, and in this collateral attack the presumption that the court did so is conclusive. Its action in finding the allegation true and granting the special prayer did not disprove its jurisdiction, which depended on the character of the case, and not the action of the court in disposing of same. (P. 161.)</p> <p>(5) The prayer for ‘ ‘different and general relief’ ’ evidences that the parties did not intend to insist upon a sale as a sine qua non. (P. 161.)</p> <p>(6) The District Court prior to the Revised Statutes of 1879, first specifically authorizing such proceeding, had power, as a part of its general equity jurisdiction in partition cases, to order the sale of property for partition, though some of the parties to the proceeding, being under disability, were incapable of consenting (reviewing the legislation and authorities on this question). (Pp. 162 to 166.)</p> <p>(7) The action of the court in ordering sale and conveyance of the land without report of sale or order of confirmation, though probably erroneous, did not make the title of the purchaser void on collateral attack. (P. 166.)</p> <p>(8) A party having capacity to consent to such proceedings and who received a part of the land bid in for her at the sale, the part in controversy having been bid in for another owner, was bound by the proceeding as a verbal partition, and could not avail herself of insufficiency in the description of the land in the partition and order of sale. (P. 166.)</p>

<p>1. Public Road—Jurisdiction—Requisites of Petition.</p> <p>In a proceeding to establish a public road it was not essential to the jurisdiction of the Commissioners Court that the petition or application should show on its face that the applicants were citizens of the county and eight of them freeholders of the precinct through which it was to be opened. (Pp. 170, 171.)</p> <p>2. Same—Condemnation—Judgment.</p> <p>It was not essential to the validity of the order of the Commissioners Court condemning land for a public road that such judgment or some other part of the record should affirmatively show: that the petitioners for the road had given the notice required by statute; nor that the persons appointed as a jury of view possessed the statutory qualifications and took the statutory oath; nor that the owner was served with or waived notice of the time and place of their action. (Pp. 170, 171.)</p> <p>3. Statutory Construction.</p> <p>The maxim that the expression of one requirement excludes others, applied to the construction of the law for laying out public roads and condemnation of land therefor (Rev. Stats., Title 97, Chap. 1) with reference to what must be contained in the petition, judgment and record, in order to show a valid proceeding. (P. 170.)</p>

<p>Estoppel—Merger—Foreclosure—Primary Fund—Superior Title—Redemption.</p> <p>H. having bought land for notes secured by lien reserved in the deed, conveyed it to D., who assumed the payment of such incumbrance as part consideration and gave his notes for the remainder, securing this entire consideration by lien which, as to D.’s notes only, was afterwards foreclosed in suit by H., and the judgment then sold by him, before execution, to M., the plaintiff. M. had previously bought from the original vendor his superior title to the land and the purchase money notes given by H., and he afterwards sold and bought in the land under the judgment of foreclosure obtained by H against D. In a suit by M. against H. and D. to foreclose the lien of the note originally given by H., the latter tendered payment and sought to redeem. Held'</p> <p>(1) H. was not estopped by his sale of the judgment against D. from asserting against the latter the lien for debt, assumed by him, reserved in the deed from H. toD. (P.177.)</p> <p>(2) Plaintiff’s purchase at the foreclosure sale under the judgment recovered by H against D. did not by merger of the titles relieve -H. from liability on the note sued on; for:</p> <p>(a) M. purchasing under the judgment was in the same position as if he had bought directly from D.—the case not being distinguishable from that of a mortgagor who had assumed to pay the mortgage debt, and who, in turn, conveys the land to the mortgagee.</p> <p>(b) In such case the legal and equitable title unite in the mortgagee, who may ordinarily elect to' treat the mortgage as merged, or still in existence, as his interests may require, if the rights of third parties are not affected and there is no agreement to the contrary.</p> <p>(c) But in such case, as between the mortgagor and his grantee and those claiming under him, the land becomes thé primary fund for the payment of the debt.</p> <p>(d) The title of M. to the land, by his purchase of the superior title and debt, became complete as against all parties to the transaction, but he had a right to proceed against H. for the debt, the latter being entitled to demand that the land, as the primary fund, should be first subjected to its payment. (P. 176.)</p> <p>(3) The judgment should have provided that the land sold to M. under the judgment against D. should be again sold before execution issued against H. personally; for:</p> <p>(a) No equity of redemption was left in H.; but, all the parties being before the court, to avoid circuity of action the decree should be framed so as to require the primary fund to be exhausted before issuing execution against H.</p> <p>(b) The fact that H. assigned to M. his judgment against D. for a valuable consideration made no difference with the rights of the parties.</p> <p>(c) It was immaterial that at the time of the transfer of the judgment from H. to M. the latter had no actual knowledge that D. had assumed the payment of the former notes. Though the' record of the foreclosure did not disclose the fact and the deed was not on record, he had constructive notice through his chain of title. (Jumel v. Jumel, 7 Paige, Ch., 591.) (P. 177.)</p>

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Maverick County.</p>

Defendants in error, who were plaintiffs in the trial court, recovered a half interest in the property in controversy, as heirs of Wilhelmina Lipp, wife of Henry Lipp, who survived her, but subsequently died, leaving a will under which his executor, Wren, sold the property to defendant, Mealy.

<p>1. Promissory Note—Fraud—Purchase for Value—Burden of Proof.</p> <p>Where a note executed to payee without consideration, for the purpose of being discounted by him for the benefit of one of the makers, was not discounted but fraudulently put in circulation by the payee after its return had been demanded, the burden was upon the holder to prove that he paid value for it. (P. 187.)</p> <p>2. Same—Charges.</p> <p>See charges held to place upon defendants, the makers of a note defending suit on the ground that it was without consideration and was fraudulently put in circulation by the payee without authority, the burden of showing also that the holder did not pay value for it, and to be therein more favorable to the holder than was the law. (Pp. 186,187.)</p> <p>3. Writ of Error—Petitioner Complaining of Ruling Sought by Him on Appeal.</p> <p>Plaintiff in a suit upon a promissory note had judgment against an indorser but not against the makers. On appeal he assigned as error the rendering judgment against such indorser without holding the makers also liable. The indorser also appealed on the same ground and secured a reversal of the judgment as to him, that in favor of the makers being affirmed. Held, that having assigned as error on appeal the judgment against the indorser, plaintiff could not complain on writ of error of the reversal of that judgment. (Pp. 187,188.)</p>

<p>1. Public Schools—Powers of City Council and Trustees.</p> <p>Under the Constitution and laws of the State and the charter of the City of Sherman the board of trustees had the exclusive power to fix the salary of its superintendent of schools, and the city council could not limit such power by an ordinance requiring an allowance of salary above a maximum named to be submitted to the approval of such council. (Pp. 191 to 194.)</p> <p>2. Same—General Laws Construed.</p> <p>Rev. Stats., 1879, art. 3783, Acts, 1879, p. 76, and Acts, 1883, p. 112, evidence a policy that when a city, however incorporated, assumed control of its public schools the city council should exercise the powers conferred by art. 3783, until a board of trustees should be elected or appointed, in which event such board should thereafter supersede the council in the power of control, management, etc., of the public schools. (Pp. 191, 192.)</p> <p>3. Same—Special Charter Construed.</p> <p>The city council and school trustees of the City of Sherman, when it was incorporated under the general law, had the powers conferred by art. 3783, Rev. Stats., and the substantial re-enactment of such article and of the act of 1883, in sections 121 and 122 of the special charter of such city should be subject to the same construction as the general laws from which they were taken. (Pp. 192,193.)</p> <p>4. Same.</p> <p>The omission in sec. 122 of said charter of the language of the act of 1883, conferring upon the trustees the power to manage and govern the schools “that the city council * * * now have,” was proper in view of the fact that, the city having previously appointed trustees, the council did not then possess such powers, and such omission did not show an intention to vest “exclusive” power in the council and general control in the trustees at the same time. The “exclusive power” vested in the council by art. 3783, Rev. Stats., was exclusive as against State or county officials, and not as against trustees who might succeed to the power of the council. (P. 193.)</p> <p>5. Public Schools—Control—Fixing Salaries.</p> <p>The word “control,” as used in the statutes relating to public schools, includes the fixing of the salary of a superintendent. (P. 193.)</p>

McFadden & Bro. sued the Houston & Texas Central Railroad Company and Fort Worth & Hew Orleans Railway Company and had judgment against the former only, which appealed, as did also the plaintiffs. The judgment against the appealing defendant was affirmed and that in favor of the appellee defendant was reversed and rendered for plaintiffs. Each of the two defendant companies obtained writ of error.

<p>Application for writ of error to the Court of Civil Appeals for the Third District, in an appeal from Travis County.</p> <p>For the previous history of this litigation see: Schintz v. Morris, 89 Texas, 648; Hume v. Schintz, 90 Texas, 72; Schintz v. Morris, 13 Texas Civ. App., 580; same case, 35 S. W. Rep., 516; 35 S. W. Rep., 825 (on rehearing); 36 S. W. Rep., 292 (dissenting opinion).</p>

Edmondson brought the suit against the Telegraph Company, and the latter obtained writ of error from a judgment affirming, on its appeal, a recovery by plaintiff in the trial court.

Dobbin brought suit in District Court and recovered a judgment against Hoefling and Kampmann, which was affirmed on an appeal by defendants, who thereupon obtained writs of error.

Ebbob to the Court of Civil Appeals for the First District, in an appeal from Liberty County. Plaintiff in error brought the suit and recovered judgment in the trial court, which was reversed and remanded on defendant’s appeal; whereupon appellee obtained a writ of error on the ground that the ruling practically settled the case.

<p>Original proceeding, by petition in the Supreme Court, for writ of mandamus to the County Treasurer of Travis County.</p>

<p>1. Appeal Bond—Joint Bond—Reversal as to One.</p> <p>When a joint appeal bond is given by several appellants the undertaking is several as to each of the principals, and the" sureties are liable accordingly, although the judgment is rendered against some but not all of their principals on appeal. (Pp. 880, 881.)</p> <p>2. Same.</p> <p>From a judgment against a principal and two sureties on an official bond all three appealed, giving a joint appeal bond thereon. Upon affirmance of this judgment as to the principal and reversal as to the sureties on his official bond, it was proper to render judgment against the sureties on the joint appeal bond. (Pp. 819, 881.)</p>

C. R. Smith recovered a judgment against A. H. Belo & Co. for libel, in the sum of $1000, which was affirmed on appeal by defendants, who obtained writ of error.

<p>1. Attorney’s Fees—Settlement by Client—Limitation.</p> <p>Where the client settles a controversy without knowledge of the attorney conducting the litigation and continuing to perform services, limitation does not begin to run against the claim of the latter for compensation until he has notice of the settlement. (P. 229.)</p> <p>3. Same.</p> <p>An attorney obtained judgment for a bank for the amount of a note and attorney’s fees stipulated therein, which fees by the agreement were to belong to him. Afterwards the bank, without concealment and without knowledge by those then managing it of the attorney’s interest therein, settled the judgment by compromise. Held, that the bank occupied a relation of trust to its attorney with reference to the judgment, and limitation would not run in its favor against the claim for the attorney’s fees until he was notified of the settlement. (Pp. 227 to 231.)</p>

<p>1. Supreme Court—Conflicting Rulings—Jurisdiction—Practice.</p> <p>Where jurisdiction is obtained on the ground of conflicting rulings the Supreme Court is not confined to a consideration of the points involved in such conflict, but will determine whether any of the assignments made in the Court of Civil Appeals were well taken. (P. 240.)</p> <p>2. Bill of Exceptions—Deposition—Motion to Suppress.</p> <p>1A bill of exceptions to the overruling of a motion to suppress a deposition should show the matters relied on as ground for the motion to have been true in fact. It is not sufficient that the bill show that the motion was made on certain grounds, without showing that the facts were so; nor will the fact that the court overruled the motion on the express ground that it came too late, show that he found or considered the facts to be as stated in the motion. (Pp. 241, 242.)</p> <p>3. Independent Executors—Joint Powers—Death—Survival of Power. Where a will appointed joint executors with power to sell property and provided</p> <p>for administration without control of the court, the power of sale so given, upon the death of one executor, passed to the survivor. Ch. 81, sec. 160, Gen. Laws, 1870, p. 141, does not require an abandonment of the rule to that effect settled by the decisions in this State. (Pp. 242 to 244.)</p> <p>4. Executor—Agent—Delegating Discretion.</p> <p>An executor cannot delegate discretionary powers, such as the right to decide to sell property of the estate and the terms of sale, but can delegate the mere execution of deeds on terms found satisfactory by himself. The act of an agent in executing a deed does not bind the estate, except as supplemented by the exercise of the executor’s discretion in favor of the transaction; but there is no rule requiring these acts to be done together, or prescribing which shall be done first. (Pp. 244 to 246.)</p> <p>5. Same.</p> <p>If the agent negotiates a sale and executes deed in accordance with a power of attorney from the executor, which transaction is subsequently approved by the executor, this will be a sufficient exercise by the latter of the discretionary power of determining upon the sale, which he could not delegate to the agent, though it could not be accurately called a ratification. (Pp. 245, 246.)</p> <p>6. Same.</p> <p>Where such executor determined to sell certain land in small tracts, and thereupon authorized an agent to negotiate sales and subdivide to suit purchasers, and, as the sales were made, the facts concerning same were, from time to time, reported to the executor, and he considered such sales advantageous to the estate and assented thereto, such executor exercised all the discretionary powers conferred by the will necessary to a full execution of the power to sell thereby conferred. (Pp. 247, 248.)</p> <p>7. Same—Charges.</p> <p>See charges given upon above state of facts held to properly present the issue, and other charges requested held properly refused. (Pp. 244, 245, 250, 251.)</p> <p>8. Evidence—Receipt—Ratification.</p> <p>"In a suit by the heirs of a husband and the heirs of his wife against purchasers from the agent of the independent executor of the husband, an instrument signed by certain of the husband’s heirs, and by the wife’s administrator, acknowledging receipt of the balance of the purchase money note given by such purchaser and ratifying the sale as to the heirs signing such instrument, was admissible, as evidence of payment by the purchasers, against the heirs of the deceased wife, and of ratification of sale by the husband’s heirs signing it. (Pp. 849, 850.)</p> <p>9. Same.</p> <p>Judgments obtained by the executor upon purchase money notes taken in his name by the agent upon such sales, were admissible as circumstances tending to show his consent and acquiescence in the sales. (P. 849.)</p> <p>10. Evidence—Hearsay.</p> <p>Where exercise of his discretion in determining to sell the land is in issue, a declaration by an executor that he was going to sell it was not hearsay, but admissible evidence. (P. 851.)</p> <p>11. Witness—Examination—Responsive Answer.</p> <p>See opinion for question and answer thereto held responsive. (P. 351.)</p> <p>IS. Estate—Debts—Question of Fact.</p> <p>See evidence under which the existence of debts against an estate to support .a sale by the executor for their payment was held a question for the jury. (P. 853.)</p> <p>13. Will—Power to Sell—Debts—Burden of Proof.</p> <p>Where a will gives to an independent executor express power to sell the property for the payment of debts, it will be presumed that such debts existed, and the burden is not upon the purchaser to establish their existence in order to support the sale. (Distinguishing cases where power of sale was an implied one only.) (Pp. 854, 855.)</p>

<p>1. Passenger—Implied Contract.</p> <p>In order to raise an implied contract for his transportation which would constitute him a passenger, one who buys no ticket should enter upon that part of the train provided by the railroad company for conveying passengers. (P. 258.) •</p> <p>2. Same—Regulations—Place to Ride.</p> <p>Notwithstanding the statute permitting the payment of fares on a train, it lis a reasonable regulation for a railway company to establish places at which to receive its passengers and designate coaches' for them to ride in. (P. 258.)</p> <p>3. Same—Facts—Charge.</p> <p>Plaintiff, running to catch a train as it was leaving the station, got on the front end of the baggage car next to the engine, where the fireman threw water on him from a hose until he jumped off and broke his leg. A charge that “any person who in good faith boards a train carrying passengers, prepared and intending to pay his fare to the conductor, is a passenger, and it makes no difference what part of the train he boards, provided, of course, he occupies a safe place,” was erroneous. (Pp. 257, 258.)</p> <p>4. Pleading—Passenger or Trespasser.</p> <p>A petition alleging that plaintiff, though riding on the platform of the baggage car, was a passenger, and that he was compelled to jump from the train while in motion, by the act of the engineer or fireman in throwing water upon him, from a hose, though not stating that such act was within the scope of the servant’s employment, will, in the absence of exceptions to the pleading on this ground, support a submission of the question of defendant’s liability for injury to a trespasser. (P 358.)</p>

L. Bicocchi sued the Casey-Swasey Company and the Texas Furniture Company to remove clouds from his title to certain real property. On trial before the court plaintiff was denied a recovery and the liens claimed by defendants against the property were held valid. Plaintiff appealed, and on affirmance of the judgment obtained a writ of error.

<p>1. Garnishment—Answer—Controverting Affidavit.</p> <p>A garnishee’s answer can only be controverted by affidavit as provided by Rev. Stats., art. 845. An unsworn “supplemental petition” of plaintiff charging that a deed of trust, which the garnishee by his answer alleged to be a valid transfer to him of property of the debtor for the benefit of his creditors, was fraudulent and void, does not put in issue the validity of such deed. (P. 876.)</p> <p>3. Same.</p> <p>A garnishee’s answer which alleged a valid transfer of the debtor’s property to him, but did not present a copy of it as an exhibit nor recite its contents, did not, in the absence of a controverting affidavit, authorize the court to receive evidence of the contents of such instrument or treat it otherwise than as valid. (P. 877.)</p> <p>3. Garnishment—Answer—Amendment.</p> <p>Since the garnishee has the right to amend his answer, it would seem that, where the amended answer is evidently a substitution for the original, the latter ought to go out of the case, save perhaps as evidence in the event the amended answer is controverted. (P. 877.)</p> <p>4. Assignment of Errors.</p> <p>Errors by the trial court not assigned as such on appeal and those of the appellate court not assigned on writ of error will not be considered by the Supreme Court. (P. 877.)</p>

<p>1. Witness—Impeachment—Irrelevant Matter.</p> <p>Testimony contradicting the evidence of an adverse witness is not admissible where such evidence was not relevant to the issues. (P. 281.)</p> <p>2. Same.</p> <p>An engineer having testified that he knew nothing about a boy having been struck by his engine till the next day, could not be questioned about having seen a man by the track pointing back to the scene of the accident, and contradicted on denying having noticed such occurrence. (Pp. 280, 281.)</p> <p>3. Contributory Negligence—Care Required of Child.</p> <p>In determining the care required of a plaintiff fourteen years old struck by a train while walking on track, his age, intelligence, and ability to understand the character and consequences of the act are to be considered,—not the care which a reasonably prudent person of the same age would exercise. (P. 281.)</p>

<p>Appdicatiok for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Dimmit County.</p> <p>The suit was brought for the recovery of land, by the New York and Texas Land Company, Limited, which recovered judgment against the defendant, Mary J. Votaw, who appealed and secured a reversal, and was denied judgment against the other defendants, and this judgment affirmed on the Company’s appeal. The Land Company then applied for writ of error.</p>

<p>1. Disclaimer—Costs.</p> <p>Where a defendant in trespass to try title disclaims as to a part only of the land sued for and subsequently by amendment disclaims as to a part of that claimed by his first answer, the plaintiff, though failing on the trial to recover the part thus left in controversy, is entitled to recover his costs incurred up to the time of filing the latter and more extensive disclaimer. (P. 286.)</p> <p>2. Same—Partial Recovery.</p> <p>See opinion for a general discussion of Rev. Stats., arts. 5254, 5270,1425 and of the rule as to costs in cases of partial recovery and of disclaimer in trespass to try title. (Pp. 285-287.)</p>

<p>1. Master and Servant—Bisks Assumed—Promise to Bepair.</p> <p>A servant who, becoming aware of a defect in machinery which he uses, informs the master and receives a promise to repair it, does not, by continuing in the employment in reliance upon such promise, assume the risk; and if injured thereby he may recover, provided it be found that a man of ordinary prudence, under all the ■circumstances, would have encountered the danger by continuing in the service. <Pp. 288-289.)</p> <p>3. Same—Cases Discussed.</p> <p>Railway v. Brentford, 79 Texas, 619, distinguished, and Railway v. Bingle, 9 Texas Civ. App., 322, approved. (Bp. 288-289.)</p>

Separate suits, one by the mother and the other by the injured child, were consolidated and tried together. Defendant appealed from judgments for both plaintiffs, and upon affirmance obtained writ of error.

Claflin & Co. brought the suit and obtained judgment against Harrington and wife who carried the case by writ of error to the Court of Civil Appeals and upon affirmance of the judgment obtained writ of error from the Supreme Court.

<p>Questions certified from Court of Civil Appeals for Second District, in an appeal from Clay County.</p>

<p>1. Appeal Bond—Justice Court.</p> <p>A bond on appeal from Justice Court, under Rev. Stats. (1879), art. 1670, is sufficient if it is in double the amount of the judgment exclusive of costs. (Pp. 307, 308.)</p> <p>2. Same—Statutory Construction—Revision—Omission.</p> <p>The omission in the Rev. Stats, of 1879, art. 1670, of the words “and interest and costs,” found in sec. 21, Act Aug. 17,1876, is held to show an intent to change the former law. (P. 308.)</p> <p>3. Same—Cases Reviewed.</p> <p>Colorado County v. Delaney, 54 Texas, 280, approved; Bell v. Brown, 11 Texas Civ. App., 526, overruled; Owens v. Levy, 1 White & W. C. C., sec. 409, and Ross v. Williams, 78 Texas, 371, distinguished. (Pp. 308, 309.)</p>

<p>Questions certifed from Court of Civil Appeals for Third District, in an appeal from Bell County.</p>

<p>Question certified by Court of Civil Appeals for Fourth District, in an appeal from Bexar County.</p>

<p>Ebb,ob to the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p>

Upon an amended petition, the application was subsequently granted; but later, was dismissed for failure of the applicant to file bond.

Mrs. Eberhart sued the railway company for damages from the death of her husband, an employee, and obtained judgment, from which defendant appealed and upon affirmance obtained writ of error.

<p>Certificate of dissent from Court of Civil Appeals for the Second District, in an appeal from Clay County.</p>

Action for personal injuries brought by Carr. He recovered judgment against the railway company, which appealed and on its affirmance obtained writ of error.

<p>1. Certificate—Transfer of Part—Relocation.</p> <p>The owner of a 640 acre certificate, located in two tracts, conveyed to another so much of it as covered one of the tracts, together with the land located thereby, described in the transfer as containing about 170 acres. The certificate being floated and located elsewhere, because of a question as to validity of location, such transfer was prima facie evidence of the grantee’s title to 170 acres of the new location, without proof that the first location of the part transferred embraced that amount,— though the transfer provided for addition to or deduction from the price if the acreage exceeded or fell short of the estimated amount. (P. 339.)</p> <p>3. Same—Acres Transferred—Evidence—Field Notes.</p> <p>If proof of the number of acres in the original location was necessary, it seems that the field notes of such location, showing that it embraced 177 acres, supplied evidence on that point. (P. 339.)</p> <p>3. Registration—Notice.</p> <p>Whether registration of such transfer was notice to a purchaser, from the heirs of the original grantee, of the land patented under the new location, was not material when the purchaser was shown to have had actual notice of such transfer. (P. 339.)</p> <p>4. Certificate—Transfer—Warranty—Legal Title.</p> <p>The transfer of a part of the certificate being with warranty, the issue of patent to the original grantee vested, by estoppel, the legal title to an undivided interest in the heirs of him to whom it was transferred. (Barroum v. Culmell, 90 Texas, 93, followed, and Abernathy v. Stone, 81 Texas, 430, distinguished.) (Pp. 339, 340.)</p> <p>5. Limitation.—Suit by Party in Possession.</p> <p>An unsuccessful suit, by one in possession of land, against another claimant, to remove clouds from title, did not affect his title by limitation against the rest of the world. (P. 340.)</p> <p>6. Adverse Possession.</p> <p>Parties who claim land and enter into possession under a deed to the entire interest, recognizing no cotenancy, need no other act of repudiation of the title of other part owners to set limitation running. (P. 340.)</p> <p>7. Outstanding Title by Limitation—Pleading.</p> <p>Outstanding title need not usually be specially pleaded, to avail a defendant in trespass to try title; but a title accruing by virtue of the statute of limitations, if relied on, must be pleaded. (P. 340.)</p> <p>8. Limitation—Judgment—Possession.</p> <p>One obtaining judgment for land against parties in possession, but not acquiring the possession thereunder, can not avail himself of their title by limitation, to defeat an adverse claimant. (Pp. 340, 341.)</p> <p>9. Title to Land—Undivided Interest—Limitation.</p> <p>A recovery by one defendant, who establishes, by limitation, title to one-third of the land in controversy, extinguishes, to that extent, the title of plaintiffs claiming an undivided interest, and it is error to award them judgment for the entire interest claimed by them, out of the part claimed by other defendants. (P. 341.)</p>

<p>1. Power of Attorney—Execution.</p> <p>A power may be executed by an instrument which does not refer to the power itself, but it must appear from such instrument or the circumstances that its maker did in fact act under and by virtue of the power. (P. 345.)</p> <p>2. Same—Instrument not in Execution of Power.</p> <p>If it appear from the instrument itself or from the circumstances that it was not the intention of the maker to execute any power derived from another, then such instrument, though it be not effective to convey any title otherwise, can not be sustained by referring it to the power. (P. 346.)</p> <p>3. Same—Fact Case.</p> <p>B. gave W. a power of attorney to convey various tracts of land some of which he subsequently sold to W., who afterwards deeded to T. a tract included in the power of attorney but not in the conveyance from B. to him. The deed from W. did not profess to be in execution of the power, but to be his own conveyance of property which, according to its recitals, he had bought from B. Held, that it could not be sustained as an execution of the power conferred on W. by B. (Pp. 343-346.)</p> <p>4. Cases Distinguished.</p> <p>Rogers v. Bracken, 15 Texas, 564; Huffman v. Cartwright, 44 Texas, 896; Hough v. Hill, 47 Texas, 148; Link v. Page, 73 Texas, 593; Allison v. Kurtz, 3 Watts, 185; distinguished from this case. (P. 343-345.)</p>

Hannig sued the railway company for personal injuries, and recovered a judgment which was affirmed on appeal by defendant who thereupon obtained writ of error.

Prior to the election of 1896 the county of Jefferson had been divided into precincts, two of which were No. 1 and No. 5. At that election the relator was elected and subsequently qualified as Justice of the Peace of Precinct No. 1. Another person was elected to the same oEce in No. 5, and qualified, but was afterwards required to give another bond, having failed to do which, his oEce was vacated.

<p>1. Mandamus—General Denial—Effect.</p> <p>A general denial of the allegations in a petition for mandamus goes for naught; so-that the facts stated in the petition are to be taken as true. (P. 354.)</p> <p>2. Mayors Court—Jurisdiction—Constitutional Law.</p> <p>The statutes investing mayors or recorders of incorporated cities in this State with the authority of justices of the peace within the city are not unconstitutional. Harris County v. Stewart, ante p. 133, approved, and decisions of Court of Criminal Appeals holding the contrary,—Leach v. State, 36 S. W. Rep., 471, and Ex parte Knox, 39 S. W. Rep., 670,—disapproved. (P. 354.)</p> <p>3. Conflicting' Decisions—Supreme Court—Court of Criminal Appeals.</p> <p>The Constitution has provided no means by which a conflict in the rulings of "the Supreme Court and the Court of Criminal Appeals can be determined or reconciled, each having final jurisdiction of cases coming before it. (P. 355.)</p> <p>4. County Attorney—Fees in Mayors Court.</p> <p>Having held the laws conferring on mayors or recorders courts the criminal jurisdiction of justices of the peace to be valid, the Supreme Court will award mandamus in favor of a county attorney, requiring the Comptroller to issue warrants for his fees earned in prosecuting such cases, though the Court of Criminal Appeals holds such city courts without jurisdiction and their judgments in such cases void CP. 355.)</p>

Wheeler sued the railway company and the latter appealed from a judgment recovered against it for $16,000. The Court of Civil Appeals reversed the judgment, for error in admitting the evidence of Dr. Driskill as to statements made by plaintiff to him. Plaintiff Wheeler thereupon obtained writ of error on the ground: 1.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Mitchell County.</p> <p>The bank brought suit against Mitchell County to recover upon interest coupons on some $80,000 of municipal bonds held by it. Plaintiff had judgment below and the county appealed and on affirmance obtained writ of error from the Supreme Court.</p>

<p>Application for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>1, Sale—Lien—Reservation of Title—Statute Construed.</p> <p>Sec. 17 of assignment law of 1879 (Rev. Stats., art. 2584) does not by its terms apply to or make void a reservation by the vendor until payment of the purchase price, of his title to merchandise which was to be exposed for sale by the vendee,— such transaction not being “a form of lien attempted to be given by the owner,” within the meaning of that statute. (P. 390.)</p> <p>S. Same.</p> <p>The subsequent enactment in 1885 of the present articles 2549, 3327, Rev. Stats. r 1895 (making such reservation a chattel mortgage), did not extend the provisions of article 2584 so as to make it include such a transaction. (P. 390.)</p> <p>3. Same—Chattel Mortgage—Failure to Register—Trust Deed—Accepting Creditors.</p> <p>Rev. Stats., arts. 3327, 3328, giving such reservation of title the effect of a chattel, mortgage subject to registration, do not make such lien, though unregistered, void as against creditors of such vendee who have acquired no rights in the property other than by acceptance of a deed of trust by the vendee conveying the mortgaged property for their benefit. (P. 390.)</p> <p>4. Same.</p> <p>To protect such accepting creditors they must have paid a valuable consideration for their mortgage lien at the time of its execution, in addition to their pre-existing debts. The fact that they are lien creditors for a pre-existing debt .will not suffice. (Pp. 390, 391.)</p> <p>5. Same—Creditors.</p> <p>The term “creditors” as used in art. 3327 has the same meaning as in art. 3328, and includes all persons whose claims are, upon certain conditions, charged by law as specific liens upon certain property, such as holders of attachment, execution, judgment, landlords’ and mechanics’ liens and no others. (Pp. 390, 391.)</p> <p>6. Same—Purchasers—Consideration.</p> <p>The word “purchasers” in art. 3327, as in art. 3328, includes all persons who have fixed their liens by contract or act of the parties, and embraces holders of claims secured by trust deed or mortgage, who, in order to bring themselves within the terms of the statute, must show that they hold for a consideration advanced without notice of the unrecorded lien. (P. 391.)</p> <p>7. Same—Pre-Existing' Debt.</p> <p>A pre-existing debt where there is no extension of time is not such a consideration. (P. 391.)</p>

<p>Question certified by Court of Civil Appeals for Fourth District, in an appeal from Bexar County.</p>

Lillie Gormley et al. sued the railway company for damages caused by the death of D. J. Gormley, an employe of defendant, by its negligence. Plaintiffs recovered judgment, which was affirmed on appeal, and the company obtained writ of error.

Watt sued F. G. Oxsheer and John T. Beall upon a promissory note and for foreclosure of a chattel mortgage upon property claimed by W. W. Oxsheer, who was made a defendant. Plaintiff had judgment for his debt and for foreclosure, and W. W. Oxsheer appealed and upon affirmance by the Court of Civil Appeals obtained writ of error. The case upon certified questions is reported ante, p. 124.

This was an action by Choate to recover from the railway company for personal injuries received while a passenger. A former recovery by plaintiff was reversed by the Court of Civil Appeals. 85 S. W. Rep., 180. The case, on writ of error in the Supreme Court, is reported in 90 Texas, 82, where a statement of the evidence is given. Plaintiff having again recovered judgment—the fourth in the trial court—it was reversed on defendant’s appeal.

<p>Questions certified from Court of Civil Appeals for Fourth District, in an appeal from DeWitt County.</p>

<p>Question certified from Court of Civil Appeals for Second District, in an appeal from Wichita County.</p>

<p>Questions certified from Court of Civil Appeals for Third District, in an appeal from Travis County.</p>

<p>Application for writ of error to the Court of Civil Appeals for the Fourth District, in an appeal from Falls County.</p>

The City of Austin sued Ralle to recover taxes assessed against him and had judgment as shown in the opinion. Defendant appealed, and on affirmance of the judgment applied to the Supreme Court for a writ of error. The writ was refused by the court on January 10, 1898, without written opinion. Applicant having filed a motion for rehearing the written opinion following was delivered thereon.

Glen M. Harris brought trespass to try title against James T. D. Wilson, August Ludtke, and against Harriet A. Sargent and Anna L. Plumb with whom were 'joined their husbands, and Frederick Miles. Defendants had judgment, and on plaintiffs’ appeal it was affirmed as to Ludtke and reversed and rendered as to the other appellees. Application for writ of error by Wilson was granted, and also a separate application by Sargents, Plumbs and Miles.

Marie O. Grandjean sued the City of San Antonio in trespass to try title. Defendant had judgment and plaintiff appealed to the Court of Civil Appeals, where the judgment was reversed and rendered for appellant. The City of San Antonio then obtained writ of error:

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Wise County.</p>

<p>Fraudulent Representations—Agency—Illegal Contract.</p> <p>Defendant was induced to sign a note to a bank as surety for her nephew, its employe, on representations by H. that the nephew was in default in that amount, and that the note was only to be used to show as an asset to the bank examiner, and would be discharged by sale of the homestead of the employe’s mother; when, in fact, the amount of the defalcation was in double that sum, and such homestead had already been sold in settlement of one-half of it. Held:</p> <p>(1) If H., in fact, acted on behalf of the employe in obtaining the note, its acceptance and attempted enforcement would not, as matter of law, make the bank chargeable with his fraud nor avoid the note therefor. (Pp. 461, 452.)</p> <p>(2) But if H. was agent for the bank in obtaining the note, the latter was bound •and the note avoided by his representations, though unauthorized and unknown to it. (Pp. 451, 452.)</p> <p>(3) If the bank was chargeable with the representations, as being those of its ■agents, the defendant was not precluded from making her defense by the fact that it disclosed an illegal contract. (P. 453.)</p>

Questiors certified from Court of Civil Appeals for the Third District, in an appeal from Hays County. The case upon a former appeal, is reported in 5 Texas Civ. App., 527, and 12 Texas Civ. App., 262.

<p>1. Mandamus—Other Remedy.</p> <p>The writ of mandamus should not issue where the relator has another adequate, legal remedy for the enforcement of his right. (P. 463.)</p> <p>2. Same—Case Stated.</p> <p>A corporation of another State applied for mandamus to compel the Secretary of State to receive the annual tax of $10, as required by the Act of 1893, claiming that the Act of 1897, imposing a higher tax, was unconstitutional because discriminating between foreign and domestic corporations. Held, that since that officer had refused to receive the sum offered on the ground of insufficiency in amount, the actual receipt of the money by him was unnecessary for the protection of relator’s alleged right to do business, and the mandamus should be denied. (Pp. 461, 463.)</p>

The motion was filed by Cope in the District Court of Taylor County, Lindsay, the plaintiff in execution, Cook, the sheriff, and Sharp, a purchaser at the sale, being made parties. The court sustained exceptions to and dismissed the motion. Cope appealed, and, on reversal, appellees obtained a writ of error on the ground that the ruling practically settled the case.

<p>1. Appeal—Abandonment—Writ of Error.</p> <p>A party who desires to complain, of a judgment of a trial court may appeal, abandon his appeal, and then sue out a writ of error, but this privilege is subject to the right of the appellee to have the judgment affirmed on certificate; or upon the suing out of one writ of error and its abandonment, another may be prosecuted—subject to the same right of affirmance on part of defendant in error,—which, if no sufficient excuse for the failure to file in time has been given, becomes absolute at the time at which the transcript should have been filed. (P. 471.)</p> <p>2. Same.</p> <p>A defendant in judgment appealed with supersedeas, and, after the expiration of the term to which the appeal was returnable, having failed to file transcript, sued out writ of error with supersedeas, but again failed to file transcript in time. He then prosecuted a second writ of error, filing the transcript on the day of, but after, the filing of a motion to affirm on certificate. Held, that the last writ of error was legally sued out, but would not prevent the affirmance on certificate. (Pp. 468 to 471.)</p> <p>3. Cases Distinguished.</p> <p>Eppstein v. Holmes, 64 Texas, 560; Thompson v. Anderson, 83 Texas, 337; Schonfield v. Turner, 6 S. W. Rep., 638; Trent v. Rhomberg, 66 Texas, 349, reviewed, and distinguished from Perez v. Garza, 53 Texas, 571. (Pp. 469 to 471.)</p>

Warren sued Sanger et al. and had judgment which was affirmed as to Sanger on appeal and he then obtained writ of error.

<p>Application for writ of mandamus from Supreme Court.</p>

The suit was commenced hy S. C. and Anna Vineyard, as guardians of Lillian Vineyard, to recover the property in controversy from D. M. O’Connor, who appealed from a j udgment in plaintiffs’ favor and on its affirmance obtained writ of error. A former trial had resulted in a judgment for defendant, which, being affirmed on appeal, was reversed by the Supreme Court on writ of error. Vineyard v. O’Connor, 90 Texas, 59.

<p>Error to the Court of Civil Appeals for the Fourth District, in an appeal from Bexar County.</p>

<p>1. Jurisdiction, of Supreme Court—Amount—Reeonvention.</p> <p>Where plaintiffs’ suit was dismissed, but defendant’s plea in reconvention for damages by suing out an injunction was retained and tried, the Supreme Court had no jurisdiction if the amount claimed in the plea did not exceed $1000. (P. 594.)</p> <p>2. Same—Amount in Controversy—Damages not Recoverable.</p> <p>A claim of damages for suing out an injunction, in the sum of $1250, of which sum $250 was for attorney’s fees, and not legally recoverable, was in effect a suit for $1000. (P. 504-505.)</p> <p>3. Same.</p> <p>Where plaintiff in such case prosecuted writ of error, and also instituted an original proceeding in the trial court to set the judgment aside,—which being refused, he appealed, Held, that the Supreme Court had no jurisdiction to grant writ of error in either case on their affirmance. (P. 505.)</p>

<p>1. Carrier—Delay in Furnishing Cars—Statute.</p> <p>By Rev. Stats., arts. 4494, 4496, as soon as a reasonable time elapsed after cattle were offered for transportation it became the duty of a railway company to furnish sufficient accommodations for the transportation of same, and a breach of such duty rendered it liable for all damages sustained thereby. (P. 509.)</p> <p>2. Same—Reasonable Time—Question for Jury—Charge.</p> <p>What was a reasonable time, in -the absence of an agreement, was a question of fact for the jury, and dependent upon circumstances, including all the incidents of the service; and it was error to charge that the carrier would be excused in law, if it was prevented from furnishing cars, etc., by then having an unusually large number of cattle shipments upon its road. (Pp. 508 to 510.)</p> <p>3. Assignment of Error—Charge—Verdict.</p> <p>The court can not refuse to consider an assignment of error in a charge which prevented plaintiff from recovering nominal damages and costs,- because there was no proof of actual damages and no assignment attacking the verdict. (P. 510.)</p>

<p>1. Community Property—Presumption—Spanish. Law.</p> <p>Although, both under our statute and under the Spanish law, the presumption of community property arises from the naked fact that it was acquired during the marriage, yet when, upon an exhibition of the whole title, it appears that its origin preceded the marriage, and that it is the separate property of one of the spouses, that presumption no longer prevails. (Pp. 526, 527.)</p> <p>2. Same—Empresario—Contract Performed After Marriage.</p> <p>Power and Hewitson,. empresarios, under their colonization contract with the State of Coahuila and Texas, acquired the right to a grant of lands on compliance with the terms of such contract. Power, then single, after partial compliance, subsequently married, and the performance of the contract was completed and grant to the lands issued after such marriage. As between the heirs by this marriage and those by a subsequent marriage of Power, the land so acquired was his separate property,—the community estate of the first marriage being entitled, however, to reimbursement for the labor and expenditures in the performance of the contract during the existence of such marriage. (Pp. 516 to 527.)</p> <p>3. Same—Community Expenses on Husband’s Property—Burden of Proof.</p> <p>In order for the heirs of the first wife to establish a charge upon such lands for a reimbursement of community funds expended in their acquisition, the burden was upon them to prove that the funds had been so expended. (P.527.)</p> <p>4. Same—Reimbursement of Community—Partition—Stale Demand.</p> <p>Where such heirs of the first and of the second marriage had had common use and enjoyment of the property as tenants in common the demand of the heirs of the first marriage for reimbursement of the community for its funds expended in the acquisition could be asserted at any time in a suit for partition. The matter was adjustable upon the final division of the property, and it was not necessary to assert the claim until partition was sought, and the doctrine of stale demand was not involved, (P. 537.)</p>

Claridge & Payne sued Braekenridge for commissions for negotiating a sale of land, and recovered judgment, which was affirmed on appeal by Braekenridge, who then procured writ of error.

The case, upon a former appeal, is reported in 2 Texas Civ. App., Ill, where a judgment recovered by plaintiff was reversed. A second judgment for plaintiff was also reversed on appeal. (Railway v. Roberts, 37 S. W. Rep., 870.)

An application for writ of error by the city was refused, February 3, 1898, without written opinion. Applicant filed a motion for rehearing, upon which the present opinion was delivered. No briefs have reached the Reporter.

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Anderson-County.</p>

<p>1. Railway—Refusal to Furnish Cars—Penalty.</p> <p>Rev. Stats., arts. 4497 to 4502, providing a penalty for failure to furnish ears on demand and deposit with the agent of the company of one-fourth of the freight charge, are to be strictly construed, and are applicable only to cases where an agent is maintained at or for the point of the proposed shipment. (Pp. 556 to 558.)</p> <p>2. Same—Station or Switch.</p> <p>The proviso in art. 4498, that the place designated shall be at some station or switch on the railroad, was not intended to make every switch a receiving and discharging station, and does not necessitate a construction of the statute different from that given above. Nor does art., 4532, which requires cars to be furnished at switches constructed for the accommodation of freighters,—it being an independent statute not amendatory of nor affecting the construction of the Revised Statutes then in force. (Pp. 558, 559.)</p> <p>3. Railway—Receiver—Contract—Liability of Purchaser.</p> <p>The receiver of a railway can not, without an order of the court, make a contract binding the property in his hands. A contract by him to furnish certain transportation to a shipper, is of force only during the receivership, and does not bind the company succeeding to the control of the property. (Pp. 559, 560.)</p> <p>4. Refusal to Furnish Cars—Tender for Transportion.</p> <p>Upon the refusal of a railway company to furnish cars, on demand of a shipper, for transportation of his property, as required by Rev. Stats., arts. 4494, 4496, the latter was not bound to prepare and tender the property for transportation in order to entitle him to, recover damages for such breach of duty. (Pp. 560, 561.)</p> <p>5. Evidence—Immaterial Error.</p> <p>The exclusion of a written contract between a shipper and consignee, offered in evidence to show damages occasioned to the former by a railway in failing to furnish transportation, was immaterial where the contract was established by other evidence. (P. 561.)</p> <p>6. Failure to Transport—Knowledge of Shipper’s Contract.</p> <p>Knowledge of such contract by the carrier was not necessary to the shipper’s right of recovery, and there was no error in excluding evidence of notice thereof to the carrier. (P. 561.)</p> <p>7. Evidence—Declarations of Conductor.</p> <p>To show that a railway company had determined not to furnish cars for plaintiff to ship to a certain consignee, declarations of its conductor, while setting cars in for loading, that if loaded for such consignee plaintiff would not get another car, should have been admitted. (P.561.)</p> <p>8. Evidence—Cause of Animosity.</p> <p>The existence of animosity between plaintiff and defendant may be shown in support of the claim of the former that a carrier wrongfully discriminated against him; but evidence of the cause of the animosity was immaterial and properly excluded. (P. 561.)</p> <p>9. Failure to Transport—Consignee’s Refusal to Receive.</p> <p>In a suit by a shipper for failure to furnish transportation for property he had contracted to deliver to a third party, the carrier can not show notice from such third party that he would not receive it. The plaintiff had the right to ship to him and hold him to his contract. (P. 561.)</p> <p>10. Same—Consignee’s Delay in Unloading.</p> <p>In such case it was not competent for the carrier to prove delay by the same consignee in unloading previous shipments, its remedy being not against the shipper, but against the consignee for demurrage. (P. 561.)</p>

Syfan sued the railway company and had judgment. On the company’s appeal the judgment was found excessive in amount, but not otherwise erroneous, and was affirmed on the entry of a remittitur by appellee in the amount indicated by the court. The company then obtained writ of error.

<p>1. Injury to Minor—Damages—Disability During Minority.</p> <p>In a suit for personal injuries to a minor having a parent living, an instruction which authorizes recovery of damages for impaired capacity to earn money during his minority was erroneous. (P. 573.)</p> <p>¡2. Same—Charge—Presumption.</p> <p>Such charge, being erroneous, is presumed to have been injurious to defendant. <P. 573.)</p> <p>3. Same—Effect of Other Charges.</p> <p>The presumption that such.erroneous charge was injurious is not removed, nor can it be presumed that the jury took such charge to refer to the period after minority only, from the fact that the case was consolidated and tried with an action by the mother for damages to her from the injury to her son, and that the instructions as to that branch of the case authorized her to recover for the son’s diminished earning power during minority. (Pp. 572, 573.)</p> <p>4. Charge—Pleading and Evidence.</p> <p>A charge submitting the liability of a railway company for negligence in failing to sooner discover a boy upon the track at a crossing, was improper, in the absence of either pleading or evidence presenting that issue. (Pp. 573, 274.)</p> <p>5. Charge—Stating Issues.</p> <p>The court should not, in stating the case, present an issue made by the pleadings, but on which no evidence tending to establish it has been introduced; but it may not be reversible error so to do. (P. 574.)</p>

Irvine sued Joske for unlawful imprisonment and recovered a judgment, affirmed on appeal by defendant, who then obtained writ of error.

Purcell sued the Texas Central and the Texas & Pacific Railway Companies, and appealed from a judgment in their favor. On a reversal and rendering of judgment against the latter company, it obtained a writ of error.

Watkins brought suit against E. M. and W. E. Smith. The defendants had judgment which was affirmed on his appeal, and he then obtained writ of error.

<p>Error to the Court of Civil Appeals for the Second District, in an appeal from Fannin County.</p>

<p>Limitation—Adverse Possession—Executory Sale.</p> <p>A foreign administrator whose decedent had sold land reserving a vendor’s lien, surrendered the purchase money notes to the maker on his ¡¡conveying the land to another, whose notes for the purchase money, without lien reserved, were made payable to the administrator and were afterwards paid to him,—he failing, however, to account to the heirs of decedent therefor. In a suit by the heirs to recover the land from defendants in possession for fifteen years under such purchase,—held, that their possession taken under such circumstances was adverse, and plaintiffs were barred. (Pp. 598 to 600.)</p>

<p>1. Homestead—Rural or Urban.</p> <p>In determining whether a homestead is rural or urban within the meaning of art. 16, see. 51 of the Constitution, whether it is within the corporate limits of a town or village, or not, is not of controlling influence. (P. 603.)</p> <p>2. Same—Change From Rural to Urban.</p> <p>The Constitution exempts the homestead as it is at the time of its designation, but does not guaranty that its character as rural or urban homestead shall continue in the future,—the exemption existing before its inclusion within the corporate limits by their extension being presumed to continue until it is shown that it did not originally exist or that such acts had been done, either by the owner or by the city, as to change its character from a rural to an urban homestead. (P. 604.)</p> <p>4. Same—Question of Fact.</p> <p>The head of a family designated as his homestead a four-acre tract outside an incorporated town, building thereon a residence and two tenant houses; the corporate limits were afterwards extended so as to include the tract, and streets were opened and improved along its boundaries. Held, that whether the homestead had lost its rural character, and the tenant houses and lots their exemption, was a question of fact, on which the Supreme Court was bound by the finding of the lower court. (Pp. 601 to 605.)</p>

Randolph and others, interveners in the receivership proceedings upon claims accruing against the corporation before the appointment of the receiver, prosecute writ of error from a judgment of the Court of Civil Appeals reversing that of the trial court which set aside a part of the proceeds of the sale of the property under foreclosure to reimburse the fund derived from the earnings of the corporate property while in the receiver’s hands (upon which they claimed a lien…

<p>Conveyance—Description.</p> <p>A grantor conveyed, “all that certain tract or lot of land * * * containing 1001 acres more or less, and being the remaining portion now owned by me of the tract of land originally granted to B. Rodriguez,” He owned at the time two separate tracts, a mile apart, containing respectively 1001 and 165 acres, remaining out of 2500 acres of the Rodriguez survey once owned by him. Held, that the deed conveyed only the tract of 1001 acres. (P.616.) ■ ■</p>

<p>1. Certified Questions—Whole Case.</p> <p>The Supreme Court will not answer certified questions where it is manifest from an examination of the statement and questions presented that the whole case has been certified for its decision. (P. 617.)</p> <p>2. Same—Statement of Issues.</p> <p>When questions propounded cannot be answered without a knowledge of the issues presented by the pleadings the Court of Civil Appeals must state such issues, not refer for them to the pleadings, which are not before the Supreme Court. (P. 617.)</p> <p>3. Same—Hypothetical Questions.</p> <p>Certified questions cannot be predicated upon hypothetical statements of fact, but must be questions of law arising upon the record, the certificate presenting the very question so arising, which is not done where the statement implies that either phase of the facts may be true. (P. 6170</p>

Questions certified from Court of Civil Appeals for Second District, in an appeal from Wise County. Suit by R. W. Cummings et al. against J. W. Morris, marshal of the town of Alvord, to enjoin the collection of a poll tax imposed by the town. Plaintiffs prevailed and defendant appealed.

<p>Questions certified from Court of Civil Appeals for the First District.</p>

<p>Question certified from Court of Civil Appeals for the Third District.</p>

<p>Appeal Bond—Justice Court—Judgment for Costs.</p> <p>A plaintiff in justice court may appeal from a judgment in defendant’s favor for costs without giving bond. The right of appeal is given by the Constitution (art. 5, sec. 19) and the requirement of a bond in double the amount of the judgment (Rev. Stats., art. 1670) applies only when a judgment is rendered for some amount other than costs. (Pp. 639, 630.)</p>

. Error to the Court of Civil Appeals for the Fourth District, in an appeal from Austin County. Foster sued the railway company for damages to land and Harrison intervened. Both plaintiffs recovered and defendant appealed, securing reversal as to Harrison. Appellees obtained a writ of error. The company filed cross-assignment, of error in affirming the judgment as to Foster.

<p>Questions certified from Court of Civil Appeals for the Fifth District.</p>

<p>Questions cbrtieied by the Court of Civil Appeals for the Third District, in an appeal from McLennan County.</p>

Knox County. The case upon a former appeal is reported in 13 Texas Civ. App., 618 (35 S. W. Rep., 933), where a recovery by plaintiff was reversed. On a second trial plaintiff appealed from a judgment for defendant, which was affirmed in an opinion as follows:

Williams, temporary administrator of Ellis, the payee and endorser of the note sued on, obtained writ of error from a judgment affirming a recovery against him in the trial court.

<p>Question certified from the Court of Civil Appeals for the Second District, in an appeal from Hood County.</p>

<p>Error to the Court of Civil Appeals for the First District, in an appeal from Walker County.</p>

<p>Questions ceetified from Court of Civil Appeals for First District, in an appeal from Galveston County.</p>

<p>1. Railway—Crossing—Signals.</p> <p>Rev. Stats., art. 4507, requires that the whistle must he blown, in approaching a road crossing, at some point sufficiently near the crossing to be reasonably calculated to give warning to persons about to use same,—such point not to be nearer to such crossing than eighty rods. (P. 672.)</p> <p>2. Same—Charge.</p> <p>A charge requiring that the defendant company shall blow the whistle “when within eighty rods from the crossing” is erroneous. (P. 672.)</p> <p>3. Crossing—Contributory Negligence—Burden of Proof.</p> <p>In case of collision at a road crossing the burden is upon defendant to prove contributory negligence of plaintiff, though the petition alleged that he was free from contributory negligence. (P. 672.)</p>

<p>1. Bailway—Beceiver or Agent—Burden of Proof.</p> <p>Where a petition seeking recovery from a railway company for the death of a fireman employed in operating its road, alleged that the road was operated and its operatives employed by such company in connection with another as its pretended lessee and E. and 0-, acting as its receivers, but without authority except as mere agents, the burden of proof was upon plaintiff to show that the possession and operation of the road by the receivers was illegal. (P. 677.)</p> <p>2. Same—Beceivers—Agency.</p> <p>Persons purporting to act as receivers of a railway company are not presumably its agents. (P. 677.)</p> <p>3. Federal Courts—Beceivers—Jurisdiction—State Lines.</p> <p>The jurisdiction of the Circuit Court of the United States does not extend beyond the limits of the State in which it sits, and a receivership created by such court over the property of a railroad company in a State other than that in which the court is established is void. (P. 677.)</p> <p>4. Same—"Within State—Outside of District.</p> <p>Process from such court may issue from one district to another within the same State, the right of defendant to be sued in the district o£ his residence being a personal privilege which he may waive,—in which case foreclosure of a mortgage, and sale of property, and receivership thereof pending same, may be had where the property is within the State but without the district. (P. 678.)</p> <p>5. Same.</p> <p>The power to appoint a receiver is inherent in the court of chancery, and such appointment may be made whenever the property lies in any part of the territory subject to the process of the court. (P. 679.)</p> <p>6. Same—Case Stated.</p> <p>Receivers of the M., K. & T. Railway and other allied roads lying in Missouri, Kansas and Texas, were appointed by the United States Circuit Court in Missouri, and by ancillary suit in the Northern District of Texas the same persons were appointed receivers of defendant company’s road, which was situated wholly within the Eastern District of Texas. Such latter appointment was not void for want of jurisdiction in the court. (Pp. 678, 679.)</p>

<p>1. Married Woman—Deed—-Acknowledgment—False Certificate.</p> <p>A married woman’s deed of her separate property, with a notary’s certificate thereto showing privy examination and acknowledgment by her in due form, does not divest her title where she shows that such certificate was false, and that she did not in fact appear before the officer and he did not take her acknowledgment or attempt to do so. (P. 683.)</p> <p>2. Same—Innocent Purchaser.</p> <p>Where a married woman signing with her husband a deed to her separate property appears before the proper officer for the purpose of acknowledging it and such officer fails to do his duty in taking the acknowledgment, but makes a certificate which shows a full compliance with the law, such certificate is conclusive in favor of an innocent purchaser. (P. 683.)</p> <p>3. Same.</p> <p>But where such married woman has not appeared before the officer for the purpose of acknowledging the deed, she having in no way invoked the exercise of the officer’s authority in that respect, the certificate, however formal, is not binding upon her, even in favor of an innocent purchaser for value and without notice. (P. 683 to 684.)</p>

<p>Error to the Court of Civil Appeals for the Third District, in an appeal from. Brown County.</p> <p>Bean appealed from a judgment of the District Court of Brown. County denying his motion to set aside a sale of his homestead for taxes under its decree of foreclosure, and on affirmance of that judgment obtained writ of error.</p>